Generally, an eligible person will succeed in a challenge to a
Will if they have been left without adequate provision and they can
demonstrate some financial need. Provision will not usually be
refused except in exceptional circumstances, such as where there
are minimal assets in the estate or where there has been
With the increasing number of claims against small estates,
judges are quickly changing their attitude towards these
In the recent NSW Supreme Court decision of Bull v Booth three
adult children brought a claim for further provision against their
mother's estate. The mother's Will appointed her second
husband as her executor and left all of her estate to him. The
major asset was a home valued at approximately $410,000. The estate
also had liabilities of $70,000, including legal costs. The husband
was unable to work and was living on a disability pension as a
result of significant health problems. He did not own any property
and had assets of approximately $7,000.
All three children had varying medical conditions requiring
ongoing treatment and two were unable to work due to their
conditions. Two had dependent children who required ongoing medical
care. Two had significant mortgages over their homes, while the
third lived in government housing. All three children had a good
relationship with their mother before she died.
The court found that all three children were eligible to bring a
claim and had clearly been left without adequate and proper
provision. However in all the circumstances, the husband's
entitlement as the spouse took priority over the children's
Taking into consideration the small size of the estate, the
estate's liabilities and the needs of the husband, the court
denied any further provision to the children and dismissed their
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The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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If you are doing a Will, or you are the executor of a deceased estate, consider what taxes and duties could be payable.
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